Lengthy legal battle over wall likely after Trump's emergency declaration

The national emergency declared by the US administration has set the stage for lengthy legal challenges to President Donald Trump's push for a border wall, but experts expect he will end up redirecting money without congressional approval, which some said should bring scrutiny of the emergency powers law.

On Friday, Trump invoked emergency powers, given to the president by the 1976 National Emergencies Act, to justify repurposing federal funds to pay for a southern border wall, which was one of his signature 2016 campaign promises and is opposed by Democrats.

In a joint statement, the top two congressional Democrats, Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer, called Trump's move "unlawful over a crisis that does not exist", and vowed to use "every remedy available" against it, while calling for Republican lawmakers to join their efforts.

William C. Banks, co-author of National Security Law and the Power of the Purse, a 1994 book about tensions between the executive and legislative branches over security and spending, doubted their efforts will succeed.

"The two houses of Congress will attempt to disapprove the proclamation, but they will likely fail, either because the Senate will fail to pass a resolution of disapproval, or because the president will veto the resolution and the two houses will fail to override the veto by the required two-thirds," Banks, a Syracuse University College of Law professor, told China Daily.

The president would then proceed but would be sued, Banks said.

Trump had predicted an upcoming legal fight. "I expect to be sued. I shouldn't be sued. ... We'll win in the Supreme Court," Trump said on Friday.

The American Civil Liberties Union announced its intention to sue after the White House released the text of Trump's emergency declaration, followed by nonprofit watchdog group Public Citizen, which urged the US District Court for the District of Columbia to "bar Trump and the US Department of Defense from using the declaration and funds appropriated for other purposes to build a border wall".

California Governor Gavin Newsom also said his state would sue. "The president didn't get his way - so he's manufacturing a crisis and declaring a made-up 'national emergency' to seize power and subvert the Constitution. California will not stand for it," Newsom said on his Twitter account on Saturday.

Banks also said private parties could prevail in court if they convince a judge that the military construction statute does not permit construction of a border wall to be administered by a civilian agency - US Customs and Border Protection.

Cal Jillson, a political scientist and historian at Southern Methodist University in Dallas, Texas, also noted that Trump can veto any challenges that arise in Congress.

"The federal courts will likely hold that he has the authority to issue an emergency declaration, (but) that he does not have the power to spend money on a policy and project that Congress has explicitly declined to fund," he said.

Trump's move, coming in the wake of a budget defeat and the longest partial government shutdown in history, is geared to serve his re-election campaign, according to Jillson.

He also noted that the Democratic Party did well in the 2018 elections, regaining control of the House, and said newly empowered Democratic House Speaker Pelosi prevailed in the government shutdown and in the recent funding negotiations.

"He hopes that the emergency declaration will allow him to regain political momentum as he prepares for his 2020 re-election fight," Jillson said.

The emergency declaration will stabilize Trump's support with his political base in the short term, but over the longer term he will very likely be blocked in the courts, Jillson said.

The National Emergencies Act has been invoked 59 times without a single successful legal challenge, according to earlier media reports.

The broad grant of discretion to the president could make it hard to persuade courts to rule that Trump exceeded his authority in declaring a border emergency, according to an Associated Press report.

"He's the one who gets to make the call. We can't second-guess it," AP quoted John Eastman, a professor of constitutional law at the Chapman University School of Law, as saying.

Stanley Renshon, a political scientist at City University of New York, said that parties seeking to block the emergency measure could win at different levels. But eventually the president will prevail before the Supreme Court and get what he wants, he said.

"You will find a lot of high guessable smoke and accusations and shouting, certainly from Democrats and media and other institutions," he said. "But Trump will simply soldier on."

Under the National Emergencies Act, it's "far too easy" for a president to declare emergencies where none exist - and far too difficult for Congress to put a stop to them, said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice.

In a series of tweets posted immediately after Trump's emergency declaration, Goitein said it's time for Congress to revisit the current legal system for emergency powers.

huanxinzhao@chinadailyusa.com